from the overkill-far-preferable-to-underkill dept

NJ Rep. Rush Holt announced back on July 11th that he was planning legislation to repeal both the PATRIOT Act and the FISA Amendments Act. The text of Holt's bill, the "Surveillance State Repeal Act," has been posted, along with a summary of the key aspects of the legislation.

Holt's bill covers a lot of ground for something that only runs about 8 pages long, and as promised, some additional protection for whistleblowers is built in. Here's the summary:

3. Ensure that any FISA collection against a US Person takes place only pursuant to a valid warrant based on probable cause (which was the original FISA standard from 1978 to 2001).

4. Retain the ability for government surveillance capabilities to be targeted against a specific natural person, regardless of the type of communications method(s) or device(s) being used by the subject of the surveillance.

5. Retains provisions in current law dealing with the acquisition of intelligence information involving weapons of mass destruction from entities not composed primarily of U.S. Persons.

6. Prohibit the government from mandating that electronic device or software manufacturers build in so-called “back doors” to allow the government to bypass encryption or other privacy technology built into said hardware and/or software.

7. Increase the terms of judges on the Foreign Intelligence Surveillance Court (FISC) from seven to ten years and allow their reappointment.

8. Mandate that the FISC utilize technologically competent Special Masters (technical and legal experts) to help determine the veracity of government claims about privacy, minimization and collection capabilities employed by the US government in FISA applications.

9. Mandate that the Government Accountability Office (GAO) regularly monitor such domestic surveillance programs for compliance with the law, including responding to Member requests for investigations and whistleblower complaints of wrongdoing.

A couple of aspects worth noting: First, while the entirety of the PATRIOT Act is repealed, portions of the FISA Amendments Act remain unchanged, specifically Sections 103 and 110.

Section 103 requires the Attorney General to forward a copy of any "decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act," along with any related documents, within 45 days of the decision. This is a key part of the oversight process and should probably be retained, although it also retains the right of the Director of National Intelligence to redact as much of these required documents as he sees fit (for "national security" reasons, of course).

Section 110 deals with weapons of mass destruction, as is noted in Holt's summary of the bill.

I'm not sure what extending the FISC judges' terms from 7 to 10 years and allowing for reappointment is supposed to accomplish, unless the hope is that in the future, there will be more diversity in court makeup (currently only one judge does not lean Republican) and that better judges will be retained longer. Hopefully, the addition of "Special Masters" to act in a somewhat adversarial role (or at least call "bullshit" on egregiously false claims) will result in less of a "rubber stamp" process.

The summary doesn't really address the whistleblower protections, other than the last sentence of point 9, which doesn't explain much. The wording in the bill is as follows:

SEC. 9. WHISTLEBLOWER COMPLAINTS.

(a) AUTHORIZATION TO REPORT COMPLAINTS OR INFORMATION.--An employee of or contractor to an element of the intelligence community that has knowledge of the programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may submit a covered complaint--

(1) to the Comptroller General of the United States; (2) to the Permanent Select Committee on Intelligence of the House of Representative (3) to the Select Committee on Intelligence of the Senate; or (4) in accordance with the process established under section 103H(k)(5) of the National Security Act of 1947 (50 U.S.C. 3033(k)(5)).

(b) INVESTIGATIONS AND REPORTS TO CONGRESS.--The Comptroller General shall investigate a covered complaint submitted pursuant to subsection (b)(1) and shall submit to Congress a report containing the results of the investigation.

(c) COVERED COMPLAINT DEFINED.--In this section, the term ''covered complaint'' means a complaint or information concerning programs and activities authorized by the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that an employee or contractor reasonably believes is evidence of--

(1) a violation of any law, rule, or regulation; or (2) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

(a) IN GENERAL.--Notwithstanding any other provision of law, an officer or employee of an element of the intelligence community shall be subject to administrative sanctions, up to and including termination, for taking retaliatory action against an employee of or contractor to an element of the intelligence community who seeks to disclose or discloses covered information to--

(1) the Comptroller General; (2) the Permanent Select Committee on Intelligence of the House of Representatives; (3) the Select Committee on Intelligence of the Senate; or (4) the Office of the Inspector General of the Intelligence Community.

(A) a violation of any law, rule, or regulation; or (B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

This offers better whistleblower protection, especially in terms of guarding against retaliatory actions. Unfortunately, this won't protect whistleblowers like Snowden, who quit of his own accord (eliminating the chance of retaliatory action) and is now facing espionage charges. Providing several routes for whistleblowers to take helps, but if anyone above these routes objects to the whistleblower (and is outside the "intelligence community" -- like the administration itself), the built-in protections of this legislation are nullified. (Of course, the same could be said about any legislation protecting whistleblowers, once the administration steps in. And I'm sure most officials won't consider "investigating" a whistleblower to be a "retaliatory" action, no matter how intrusive or destructive the outcome.)

Does this legislation have a chance? Rep. Amash's attempt to defund parts of the NSA's surveillance efforts lost by a handful of votes, but did prove that there was bipartisan support for dialing back the NSA's power. This is an even longer shot, and may be too aggressive to gain as much support as Amash's amendment. Of course, there will be a whole lot of rewriting going on before this ever gets to a vote, so the broad reach of this bill may be scaled back into something with better support without (hopefully) losing all of its bite.

from the incremental-improvement-is-off-the-table dept

Just recently, we discussed Rep. Justin Amash's plan to defund the NSA through an amendment to the defense appropriations bill working its way through the House. At this point, I would normally say "following on the heels of that news," but in this case, Rep. Steve Rush Holt!!! of New Jersey made his announcement on the 11th, while Amash's arrived on the 15th.

Holt's news? A plan to repeal two laws notorious for their encroachments on civil liberties.

Soon, I will introduce legislation that would repeal the laws that brought us our current “surveillance state”: the Patriot Act and the FISA Amendments Act. My bill would restore the probable cause-based warrant requirement for any surveillance against an American citizen being proposed on the basis of an alleged threat to the nation.

As a bonus, Holt is also proposing "genuine legal protections" for whistleblowers, a big step up from the current climate in which whistleblowers are persecuted and prosecuted.

Holt's editorial/announcement, which appeared in the Asbury Park Press, details how the NSA collects and retains data without warrants, providing special "dispensation" for those who circumvent the normal routes.

The Electronic Frontier Foundation, analyzing how the National Security Agency is apparently utilizing this data, said on its website: “In sum, if you use encryption they’ll keep your data forever. If you use Tor, they’ll keep your data for at least five years. If an American talks with someone outside the U.S., they’ll keep your data for five years. If you’re talking to your attorney, you don’t have any sense of privacy. And the NSA can hand over your information to the FBI for evidence of any crime, not just terrorism.

These two acts have resulted in agencies that are long on data and short on accountability. This situation is a direct result of administrations and legislators in thrall to a calculus of fear that has persuaded them to exchange liberty for safety despite being completely unable to guarantee their end of the bargain. Holt quotes Alexander Hamilton to make this point:

“Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

And that's where we are today -- more than a decade removed from the event that resulted in the PATRIOT Act and seeing nothing but continual escalation and expansion of government incursion on our rights and privacy. Instead of spending the last 12 years attempting to find a balance, our elected officials (and the agencies under their purview) have chosen to see how far they could push before meeting resistance. Repealing these two laws completely may be excessive (or more negatively, impossible), but finding a balance is much easier when you start from a clean slate, rather than attempting to inch back miles of overreach until the scale settles.

Minor update: Eric Hellman points out that Rush Holt is in the middle of a Senate race, which means NJ voters have a chance to (somewhat indirectly) cast their vote on these two laws.

from the good-for-them dept

With the new coalition government taking over in the UK, some had wondered if the Digital Economy Act might be up for repeal. The Liberal Democrats, who had at one time supported the DEA, but then, after public pressure, switched their position, now have a chance to act. Apparently, over the weekend, they've decided to include some of the worst aspects of the DEA to include in the list of laws to repeal. I'm not familiar enough with UK political process to understand how this works with the new government. The previous party in power, Labour, were the major backers of the Digital Economy Bill, but they got the Conservatives to vote for it as well. It's those Conservatives who won the most seats in the recent election, and then formed a coalition with the Liberal Democrats. Could someone in the UK fill us in on the process for repealing legislation, especially if your party is only part of the government because you were dragged along by another party?

from the about-frickin-time dept

It's been over six years since we began banging the drum around here to get Congress to repeal Sarbanes-Oxley, the law that was hastily written post-Enron to try to prevent such collapses again, but instead simply added a huge compliance tax, without doing much of anything to actually prevent corporate fraud. Corporate fraud is still rampant, and the law did absolutely nothing to prevent the financial collapse we see ourselves in today. There were, instead, massive unintended consequences, leading companies to go public elsewhere, go private or avoid the public markets altogether. The lack of IPOs, especially in the tech space over the past few years, even as the economy was looking strong, is incredibly telling.

So, it's good to see a renewed effort to get Congress to repeal Sarbanes-Oxley, which simply created a massive tax in terms of compliance, with awful unintended (though, totally predictable) consequences -- all while doing almost nothing to cut down on actual fraud.

I am a strong believer in the idea that fraud should be punished heavily -- but Sarbanes-Oxley didn't do that. It just moved the loopholes and punished the honest companies by dumping a huge compliance tax on them. It's been bad for the economy, bad for startups and bad for innovation, and it's time to go.